Child Support and Divorce
Though child support can often be a sore-spot for those going through a divorce, it's a required part of any divorce judgment when the marriage involved minor children. This holds true even in cases where the other parent is unemployed or can't be found.
The goal of child support is not to punish one spouse but to ensure your children have the same quality of life they had before the divorce. Divorce is a complicated, sometimes messy process and like everything else in it, the more you know about how child support works going in, the better prepared you'll be.
The Basics – What Is Child Support?
Child support is a regular payment, sometimes weekly or monthly, to the lesser earning parent in order to maintain the child's standard of living and cover their expenses. The traditional view of child support is that a non-custodial parent pays to the parent who has custody, but with the passage of the new Marriage and Dissolution of Marriage Act in 2016, that model is turned on its head. In the new law, child support is determined using a shared income model. This means that the net income of both parents is taken into account instead of simply taking a chunk of income from one parent.
Who Pays Child Support?
Generally speaking, if the child is splitting his time between both parents, the person earning less will be receiving child support, but this isn't always true. A lot of other factors come into play such as when the child spends their time mostly with one parent if there are additional expenses to pay like existing health insurance payments, and what each parent's assets are like after the divorce settlement itself.
How Is Child Support Paid?
Typically, child support is deducted automatically out of the paying parent's paycheck on a fixed schedule. These payments are sent to the Illinois State Disbursement Unit (SDU). There are other methods of paying the SDU, such as by check or money order as well. You always have the option of receiving payments from or paying the spouse directly if they explicitly agree to it, but the burden of proof falls on you.
Duration of the Payments?
Unless agreed upon otherwise, child support ends when children turn 18 or after they graduate high school if they turn 18 during their senior year. There are several cases where child support can be terminated early such as if an ex-spouse gets remarried, or the child joins the military or gets married before they graduate high school.
What Is Child Support used for?
There are very clear regulations for how the money from child support payments can be used. Child support was established so that both parents continue to contribute to their child's expenses and should be used on the child's primary needs such as food and clothing. In some cases, the court may put terms in the child support order for specific items it should be used for such as medical expenses or extracurricular activities.
How Is Child Support Calculated?
Illinois has a standard calculation to find what's called the “Basic Child Support Obligation”, which is the minimum amount the state thinks is necessary to support the child given the parent's combined income. This basic obligation is then divided between the parents based on how much each parent contributes to the total income.
This is what's meant by Illinois switching to an “income shares model”, as it takes the income of both spouses into consideration. So, for example, if the combined net income of a couple with two children was $5,500, and Spouse A contributes 70% of the income and Spouse B provides the other 30%. Looking at the state-provided table we can see that their obligation for two children is $1521.
That does not mean that Spouse A, as the higher earner, will be paying that full amount, but 70% of it. Theoretically, the same percentage that would be paid if the marriage was still together.
Added to this would be anything else that is deemed fair like expenses for daycare, health insurance premiums, and school costs. The basic calculation for a parent who has the child for the majority of the time is as follows:
(Basic child support obligation x Percentage individual spouse provided to income) + (Added court-ordered expenses x Percentage individual spouse provided to income) = Total Child Support Obligation
In Illinois, it's considered shared parenting when both parents spend more than 146 overnights a year with their child (about 40% of the year). With shared parenting, comes a slightly different calculation.
In these cases, the first thing you'd do is multiply the Basic Child Support Obligation by 1.5 to find the Shared Support Obligation.
This is meant to compensate for the increased travel time between residences, and duplicate expenses that may arise. It gets a bit more complicated when parents share time with the child as the amount of time is also factored into the equation.
Taking the same example above with Spouse A earning 70% and Spouse B earning 30% of a net income of $5,500. Since they have two kids, they would look at the state-provided table and find their basic support for two children is $1521. However, since they share parenting time, there's another step to the calculation.
First, they would take the $1521 and multiply it by 1.5 to get their Shared Support Obligation, which in this case is about $2,281. Then they would multiply that times the percentage of their contribution to the total income (70% for Spouse A, 30% for Spouse B).
So Spouse A would have a child support obligation of $1597 and Spouse B of $684. They would then multiply these numbers by the amount of parenting time the other spouse has. If Spouse A has the child for 40% of the time and Spouse B for 60% it would look like this: Spouse A's child support obligation = ($1597 * 0.6 = $958) Spouse B's child support obligation = ($684 * 0.4 = $274) Then the two amounts are compared and the person with the higher obligation pays the difference.
In this case, Spouse A would pay $684 plus any extra expenses ordered by the court. Here's the basic view of the shared parenting calculation:
Basic Child Support Obligation x 1.5 = Shared Care Support Obligation Shared care support obligation x Percentage individual spouse provided to income = Child Support Obligation
Child support obligation x Opposite parent's percentage of parenting time = Individual child support obligation
The Formula Is Not a Law
There are always exceptions to how the court can decide child support. Though the formula will always be a strong guideline for a judge, they may choose an entirely different schedule based on any number of factors unique to your case. Therefore, the only surefire way to way to know what you'll be paying in child support after a divorce is to come to an agreement with your spouse.
In cases where that isn't possible, having an attorney who knows exactly what the court will take into account is important.
For Immediate help with your family law case or answering any questions please call (312) 757-8082 now!
What Happens When Child Support Isn’t Paid
Paying child support isn’t optional, and when an ex-spouse chooses not to pay, they will be found in contempt of court. When this happens the court has a number of tools at its disposal.
The most common form of collecting money that’s owed is in the form of wage garnishment. This means that the unpaid child support would start being automatically deducted out of the non-paying parent’s paycheck. The court will determine what percentage of wages can be garnished based upon the specific amount owed.
Intercepting Federal & State Tax Refunds
Under section 160.70 under Illinois Administrative Code states that the Department of Healthcare and Family Services can intercept tax returns and other payments from government agencies to collect past due child support. So if a spouse falls behind on their child support and has a tax refund heading their way, that money can be intercepted to pay back what’s owed.
Liens Against Property and Assets
The Department also has the authority to secure liens against real estate and other personal assets belonging to the non-paying parent when the amount of past-due support exceeds $3,500. For example, if a spouse who’s way behind on their child support attempts to sell their house, a lien would ensure they couldn’t sell the property until the lien was paid off.
Suspend or Restrict Licenses
State law also allows for the Department to revoke and suspend any state-issued license belong to someone who’s more than 90 days delinquent on their support payments. Most commonly this would mean a driver’s license, but it can also apply to professional and recreational licenses as well.
If a parent repeatedly fails to pay the child support they owe, they would likely be served and ordered to appear in court for a child support hearing. Failure to show up to court will lead to a warrant for their arrest and possible jail time. In addition to criminal prosecution, a parent with over three months or $10,000 of unpaid support might find their picture posted up online or in their local newspaper.
Are you ready to move forward? Call (312) 757-8082 to schedule a strategy session with one of our attorneys.